R v Griffith [2009] ACTSC 114

3. On 5 June 2008, an election for trial by judge alone had been made on Mr Griffith's behalf by a guardian appointed under a Guardianship Order. The consequence of a finding that a person is unfit to plead and is unlikely to become fit to plead within the next 12 months requires the court to hold a special hearing under s 316 of the Crimes Act 1900 (ACT) ("the Act") (see s 315C of that Act). Section 316 of the Act provides for the Supreme Court to conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. Section 316(2) provides for the special hearing to be a trial by jury unless an election for a trial by a single judge without a jury has been made in the manner that it has been made in this case. At such a special hearing, an accused is to be taken to have pleaded not guilty in respect of the offence charged (see s 316(8) of the Act).

4. Section 317(3) and s 317(4) provide as follows:

_(3) If, at a special hearing by a single judge without a jury, the judge is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged) - _

(a) the judge shall find the accused not guilty of the offence charged; and

(b) the accused shall be dealt with as if the accused had been found not guilty at an ordinary trial.

_(4) If, at a special hearing, the jury (or, if the special hearing is by a single judge without a jury, the judge) is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged), the finding - _

(a) is not a basis in law for recording a conviction for the offence charged (or an alternative offence); and

(b) except as provided in section 319A (Action if accused becomes fit to plead after special hearing), bars further prosecution of the accused for any offence in relation to the conduct.

5. Section 300 of the Act defines "conduct" and "engage in conduct" as referable to s 13 of the Criminal Code 2002 (ACT) ("the Code"). Section 13 of the Code provides:

13 _Definitions - _conduct and engage in conduct

In this Act:

conduct means an act, an omission to do an act or a state of affairs.

engage in conduct _means - _

(a) do an act; or

(b) omit to do an act.

6. The Code goes on in s 14 to define the "physical elements" of an offence. Section 14 provides:

14 Physical elements

A physical element _of an offence may be - _

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, happens.

7. Division 2.2.3 of the Code sets out the fault elements for a particular physical element as intention, knowledge, recklessness or negligence (see s 17 of the Code). The element of negligence is further elaborated in s 21 of the Code:

21 Negligence

A person is negligent _in relation to a physical element of an offence if the person's conduct merits criminal punishment for the offence because it involves - _

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist.

8. In R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552 ("Ardler") the Court of Appeal answered the question of what has to be proved on the special hearing under Div 13.2 of the Crimes Act 1900 (as it then was) to determine whether the accused "committed the acts that constitute the offence charged". The Court said at [89]:

When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of the offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence unless there is objective evidence which raises such an issue including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence in which case the prosecution must negative that issue beyond reasonable doubt.

Pleas of mental impairment, provocation, or diminished responsibility are not able to be relied upon at a Special Hearing.

9. The words that were under consideration in Ardler were replaced with the present words "engaged in the conduct required for the offence charged (or an alternative offence if not satisfied in relation to the offence charged)" by s 5 of the Crimes Amendment Act 2004. The Explanatory Statement for the amendment, cl 5 of the Crimes Amendment Bill 2004 (No. 2) (ACT) stated:

Clause 5: Nature and conduct of special hearing

Clause 5 substitutes the term 'engage in the conduct required for the offence charged (or an offence available as an alternative to the offence charged)' for the current phrase 'committed the acts that constitute the offence.' This amendment clarifies that proof of intentional elements is not required at a special hearing. That is to say, it is only the physical elements of the offence that must be established at a special hearing. The prosecution is not required to establish intent, or any mental element, of any offence.

10. The amendment and the explanation given by the Explanatory Statement does not satisfactorily deal with the issue of whether it necessary for the prosecution to prove elements of the offence which make the conduct a criminal offence other than intention or any mental element of the offence.

11. I said in R v King [2004] ACTSC 82; (2005) 155 ACTR 55 that I found it curious that the legislature did not replace the concept in Div 13.2 of the Crimes Act 1900 of "committed the acts that constitute the offence" with the concept of "the physical elements of the offence". If that had been done then at least in the case of offences covered by the Code, proof would not be required of the fault elements.

12. As a consequence of my concern as to how the provision should be construed I sought additional submissions from the parties. Both parties agreed that I should make a finding as to whether the motor vehicle was driven negligently.

13. The offence with which Mr Griffith is charged is an offence under s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). That section provides:

Negligent driving

(1) A person must not drive a motor vehicle negligently on a road or road related area.

Maximum penalty:

(a) if the driving occasions death - 200 penalty units, imprisonment for 2 years or both;

...

(2) In deciding whether an offence has been committed against subsection (1), the court must have regard to all the circumstances of the case, including -

(a) the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and

(b) the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area.

14. Mr Chilcott who appeared for the Director of Public Prosecutions pointed out, that the provisions of the Code do not apply to this statutory offence as it is a pre 2003 offence which has not been omitted or remade (see s 8 of the Code). I accept the DPP's submission that the Code only applies in so far as s 300 of the Crimes Act imports the definition of "conduct" and "engage in conduct" under the Code.

15. Whatever might be the position under the Code where negligence is a fault element, the statutory offence here describes the conduct by reference to the characteristic that it bears, namely "negligently".

16. In R v Murray [2008] ACTSC 115; (2008) 51 MVR 253 at [32] Penfold J set out the elements of the offence:

For s 6 of the ACT Road Transport Act, the elements are:

negligently is to be determined having regard to all the circumstances including the nature, condition and use of the road or road related area where the offence is alleged to have been committed; and the amount of traffic on, or that might reasonably be expected to have been on, the road or road related area;

• on a road or road related area;
• occasioning;
• death.

17. As far as negligence is concerned, it requires reference to the standard of care to be expected of the ordinary prudent driver. In Director of Public Prosecutions (NSW) v Kim Soon Yeo and Anor [2008] NSWSC 953 at [27] Johnson J said:

Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.

18. On Thursday, 7 July 2005, Mr Griffith was the driver of a white Holden Statesman

De Ville Sedan when it collided with a red and white Kawasaki Ninja motorcycle at the intersection of Southern Cross Drive and Starke Street, Holt, in the Australian Capital Territory. As a result of the collision, the rider of the motorcycle died. I am satisfied beyond reasonable doubt that Mr Griffith was the driver of the Holden Statesman and that the rider of the motorcycle died as a result of the collision.

19. The issue for determination in these proceedings is whether Mr Griffith drove his motor vehicle negligently.

20. The accident occurred at about 5.45 pm. It was dark with reasonably good street lighting. Cars had their headlights on. The conditions were clear and the traffic was light. Southern Cross Drive runs east west. Starke Street runs north south and forms a T junction where it meets Southern Cross Drive. At the junction Southern Cross Drive has two 'slip' lanes. One to permit traffic travelling in the westerly direction to turn left into Starke Street and one to permit traffic travelling in the easterly direction to turn right into Starke Street.

21. Ms Slusser was driving a Daewoo Kalos in a westerly direction along Southern Cross Drive and as she approached Starke Street she moved into the left 'slip' lane. Behind her, at the time, was the motorcycle. Mr Griffith was approaching the junction driving in the easterly direction. He was in the 'slip' lane on Southern Cross Drive that would permit him to turn right into Starke Street. He turned across the carriageway of Southern Cross Drive and collided with the motorcycle that had been behind Ms Slusser's vehicle.

22. Ms Slusser gave evidence which I accept. She was not travelling at more than 60 kph and slowed to not more than 30 kph to turn into Starke Street. She was certain that the motorcycle travelling behind her was not travelling at more than 50 or 60 kph.

23. Ms Hile, a pedestrian near the scene, was also called. She could not give evidence of seeing the motor vehicle and the motorcycle before the collision but she heard the sound of it. She saw the motorcycle in the air, the white car halfway through (the T junction) which she said started to "move again a couple of times but there was something underneath that was preventing it". She then noticed the rider lying underneath the car.

24. Constable, now Sergeant Dauth, was the police officer who investigated the accident. He was then attached to the Crash Investigation Team and is a very experienced traffic accident investigator. He attended the scene some 20 minutes after the accident. He made observations of the vehicles involved and the scene itself. From those observations he concluded:

An analysis of the collision scene indicated the Holden Statesman had been travelling east on Southern Cross Drive and commenced a right turn into Starke Street. At the same time, the Kawasaki motorcycle was travelling west on Southern Cross Drive. Presumably perceiving an imminent danger, the rider of the motorcycle applied the brakes, or at least the front brake quite hard. The front wheel of the motorcycle has locked and skidded along the road.

In this instance, the rider had lost control of the motorcycle and has become separated from it. Both the motorcycle and the rider skidded along Southern Cross Drive. The motorcycle struck the turning Holden Statesman on the passenger side, it bounced off and skidded a few metres further before coming to rest. The rider skidded in front of the Holden and was struck by the Holden on the left side of the front end. The Holden continued turning and ran over the rider. The rider's helmet became wedged under the Holden and was dragged along the road leaving a light coloured scuffmark.

25. Sergeant Dauth examined both the motor vehicle and the motorcycle involved and was unable to locate any mechanical conditions or defects that might have contributed to the collision.

26. On 4 October 2006, the members of the Collision Investigation and Reconstruction Team participated in a video re-enactment of events leading to the collision. The re-enactment sought to determine whether a turning vehicle of the same type and model as Ms Slusser was driving could have obscured the view of an oncoming motorcycle of the same type and model as was ridden.

27. The DVD of the re-enactment was tendered in evidence and played.

28. Sergeant Dauth's conclusion based on that re-enactment was:

For a driver stopped or slowing at the same position of the Holden Statesman sedan on the night of the collision the oncoming Daewoo tends to obscure the following motorcycle while both vehicles are a considerable distance from the intersection. However, once the Daewoo moved into the slip lane to commence a left turn, the motorcycle becomes clearly visible. This point is approximately 60 metres from the position of the Holden Statesman. If the motorcycle was travelling at the posted speed limit of 60 kilometres per hour, it would take approximately 3.6 seconds to reach the position of the Holden Statesman. In the DVD of the re-enactment, the motorcycle was visible for 4 to 5 seconds approximately.

29. From the skid mark left by the motorcycle and the gouge marks on the road Sergeant Dauth was of the view that the motorcycle could have been travelling at between 47 to 56 kilometres an hour. He explained his calculation and I accept his evidence that it is not a reasonable possibility that the rider accelerated out from behind the left turning car.

30. A breath analysis reading from a breath sample given by Mr Griffith a short time after the accident recorded a blood alcohol concentration of .08 grams of alcohol per 100 millilitres of blood. There was no evidence given as to the effect of such a reading on Mr Griffith's actions.

31. Mr Griffith was interviewed by the police on 8 July 2005. He admitted driving the white Holden that was involved in the accident. Relevant questions and answers were:

Q109: Okay. So what happened?

A109: And anyhow the thing is that I slowed down and I - me speed must have dropped down to probably about possibly maybe about twenty K. I wasn't looking at the speedo, I was watching the vehicle in front of me and all of a sudden the vehicle speeded up and sped around the corner and when he did I was sort of directly behind him, I saw a single light when I then realised was a motor cycle and I could actually distinguish from the streets lights the bike, the rider naturally must have been - must have been doing somewhere around about the speed limit I'd say expecting to go straight ahead when this bloke went around to the left. I think he was making the assumption this chap was going to continue making his left hand turn into Starke and he was going straight ahead. Now I didn't see the headlight of the motor bike behind the vehicle. It was only revealed to me when the vehicle actually made a left hand turn into Starke.

...

Q154: What about traffic coming through?

A154: No, the oncoming traffic which in this case was the motorcycle, I would have had to have given way to him but I didn't see him.

...

Q195: All right.

A195: I don't believe there was an error of judgment. As I said, I am motorcycle aware. I'm always on the lookout for motorbikes. I know how you can be obscured from site of an oncoming vehicle or a vehicle in front of you depending on your position if you're on a motorbike and as I said, I did not see the headlight of the motorbike which seemed to indicate to me that he possible could have been very close or in such a position behind the car which obscured his headlight from view. Normally you can - if you - a vehicle is coming towards you and they've got their headlights on and there is another vehicle immediately behind and you can look through - through the rear screen of the oncoming vehicle and see the headlights of the car directly behind.

Q196: Okay. With that, is there any reason like - when this car goes into the left slip lane to turn left, is that when you would have first seen the motor bike?

A196: No, no. He was - he'd actually, well, actually the thing is, when you say a slip lane, that's indicated to me that there is two lanes going into one which is not correct.

Q197: No.

Q197: It is one lane.

Q198: One lane and then you've got a slip lane.

A198: Which goes - he turned hard left into the slip lane. So in other words he turned directly off Stark Street into, sorry, off Southern Cross Drive, directly into Starke Street. As soon as he did that it exposed the motorbike which was behind him which was coming straight through westbound and I did not have the time to take - I couldn't avoid the accident plus the fact is that the bike had - he'd locked the brakes up and the bike had gone down and the rider was off the bike.

...

A331: That I was in control of the vehicle. I observed all the proper safety procedures. I observed the traffic procedure, but, we - we know I didn't give way to the bike, but as I said, I didn't see the bike.

...

Q335: You said earlier that you don't make assumptions about vehicles giving way, like that car in front of the motor cycle being required to give way to you.

A335: H'mm.

Q336: You said you wouldn't make that assumption. But, I'll put it to you, Greg, that you've made the assumption there was no motor bike following the car?

A336: I made the assumption because I didn't see the motor bike. Right? And for some reason my vision of the motor bike was obscured by the vehicle, the westbound vehicle. Right? Um, if it had been a normal motor vehicle behind it, I would have perceived the - the headlights from the normal motor vehicle. For some reason I didn't perceive the single headlight from the motor bike, which could have been maybe the position the bike was in, um, behind that vehicle, maybe because the headlight was lower to the ground, um, I - honestly, I just don't know. I - I did not see the vehicle. The thing is, that if I - if I - under a normal situation, if I'm coming up to that - that intersection, that T section, right, and I can see a number of vehicles approaching me westbound, and I can see one vehicle, or maybe two vehicles have got their left-hand blinker on preparatory to going into Starke Street, right, but I can see the vehicle behind has not got their, um, their indicator or, I assume that once those two cars have turned, right, that other vehicle, the third vehicle, is going to come straight through. So I go into the slip land with my blinker on and I stop, and I wait until the vehicles have made their turn and the third vehicle has passed me, westbound, prior to me making - making that turn.

32. Mr Griffith did not give evidence. His answers to the police in the record of interview do contain exculpatory statements and I have taken them into account in my overall assessment of the question of whether the prosecution have established beyond reasonable doubt that Mr Griffith drove negligently.

33. It is central to Mr Griffith's defence case that he only saw the motorcycle at the point where it was too late for him to avoid the accident.

34. From the evidence given by Sergeant Dauth I am satisfied that from the time that the motorcycle would have become visible to Mr Griffith, the ordinary prudent driver would not have proceeded into the intersection. Mr Griffith failed to keep a proper lookout. I am satisfied beyond reasonable doubt that Mr Griffith drove negligently.

35. Mr Griffith is charged that on 7 July 2005 at Canberra in the Australian Capital Territory he drove a motor vehicle negligently on a road or road related area, occasioning death. I am satisfied beyond reasonable doubt that he engaged in the conduct required for the offence charged.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the prosecution: Director of Public Prosecutions (ACT)